The Constitution and the President: A Footnote

A few days back I dilated the point of my PIG book on modern presidents with a meditation on how deficient most presidential candidates, and the campaigns themselves, are on the Constitution, including even Ron Paul, who at least brings up the subject. My critique of Paul is that his constitutionalism is especially narrow and too literally text-based, i.e., if he doesn’t find something in the clearly enumerated powers of Congress in Article I, section 8, he thinks it is presumptively unconstitutional. I posed the hypothetical question of how he would regard the air force: Article I, section 8 mentions armies and navies, but not an air force. Is the air force unconstitutional? What about NASA, which performs many defense functions?

More than one pro-Paul commenter wrote in to suggest the air force would be constitutionally permissible if it was still part of the army, as it in fact originated some decades ago. Really? In that case it would be a simple matter for Obama to qualify Obamacare as constitutional by the simple expedient of having Congress declare every American a member of the “army” (or perhaps use the “militia” clause of the 2nd Amendment?), and require all “army” members to purchase health insurance and extend regulation to “army” health care services. Is this so far fetched? President Eisenhower worried that the interstate highway project was of dubious constitutionality, which is why it was presented as a national defense measure. Problem solved, if all you need to do is satisfy a legal requirement for a specific enumerated power. This won’t do.

Beyond the argument on specifically enumerated powers, I have yet to hear Paul rebut the liberals’ favorite defense of Obamacare, which is the “necessary and proper” clause. Liberals are invoking this clause, along with the Commerce Clause, to justify the individual mandate in Obamacare. What are Rep. Paul’s views on the necessary and proper clause? In what ways should it be qualified and limited?

I think Chief Justice John Marshall provided the right way of thinking about the clause in connection with my hypothetical about an air force or NASA, and how to move beyond narrow text-based literalism, in the McCulloch v. Maryland decision:

Even without the aid of the general clause in the constitution, empowering congress to pass all necessary and proper laws for carrying its powers into execution, the grant of powers itself necessarily implies the grant of all usual and suitable means for the execution of the powers granted. Congress may declare war; it may consequently carry on war, by armies and navies, and other suitable means and methods of warfare. So, it has power to raise a revenue, and to apply it in the support of the government, and defence of the country; it may, of course, use all proper and suitable means, not specially prohibited, in the raising and disbursement of the revenue. And if, in the progress of society and the arts, new means arise, either of carrying on war, or of raising revenue, these new means doubtless would be properly considered as within the grant. Steam-frigates, for example, were not in the minds of those who framed the constitution, as among the means of naval warfare; but no one doubts the power of congress to use them, as means to an authorized end.

No doubt a liberal will find any use of government power to be within the necessary and proper clause, and many courts will rightly not wish to interfere with the determination of the legislative branch on its interpretation of both its enumerated powers and their extension through the necessary and proper clause. This may include, unfortunately, Obamacare, which is why I have thought it a minor mistake to rest the case against it on the narrow grounds of whether the individual mandate violates just the Commerce Clause. This seems to be missing the forest for the trees. How about, for starters, an argument that the entire structure of Obamacare, like most of the administrative state today, violates the constitutional principle of the separation of powers? To be sure, the judiciary long ago gave up recognizing or defending that principle (by signing off on congressional delegation to the executive branch), which is precisely why this constitutional point requires a political rather than a legal argument from candidates and advocates of limited government. Again, it would be interesting to hear candidates asked whether they think Obamacare (or the EPA, or . . .) violates the separation of powers. I don’t recall hearing Ron Paul mention this principle. Likewise, I don’t recall hearing Paul articulate the founders’ theory of individual natural rights which is the philosophical cornerstone of the founders’ constitutionalism. For that matter, I don’t recall hearing Paul mention the Declaration of Independence; I suspect he dislikes the Declaration for reasons similar to Paleocons.

Newt Gingrich embraces the Declaration and talks about reviving constitutional limits on centralized government power, but then as Jon Adler has pointed out, Newt still defends the Endangered Species Act (among other dubious things), which operates as a gross violation of the principle of the separation of powers. The point is: fighting through the misuse of the necessary and proper clause requires recourse to older and almost forgotten constitutional principles which can only be reacquired by reviving the founders’ political philosophy. This involves intelligent discussion of the “authorized end” of government as Marshall meant it in McCulloch. But the GOP field doesn’t understand this.